Opinion
Nos. 24263 and 24264
Decided December 20, 1933.
Civil service — Reduction, lay off, suspension or discharge — Section 486-17, General Code — Discrimination only for religious or political reasons or affiliations prohibited.
The discrimination referred to in Section 486-17, General Code, connotes discrimination for religious or political reasons or affiliations. Under the provisions of that section, where discrimination is relied on as the sole basis for reduction in pay or position, or lay off, suspension or discharge, it must be charged and proven that the discrimination was made because of such reasons or affiliations.
ERROR to the Court of Appeals of Huron county.
Both of these actions originated in the Court of Appeals. The relators are husband and wife, the former being acting superintendent and the latter acting matron of the Huron County Home, both positions being within the classified civil service of the state. Prior to January 1, 1932, he had been receiving a salary of $125 per month, and she a salary of $70 per month. Just prior to January 1, 1932, the board of county commissioners reduced their salaries, fixing the superintendent's at $100 per month and the matron's at $40 per month. Refusing to accept the reductions, each appealed to the state civil service commission, claiming undue discrimination by the board in effecting the reductions. The state civil service commission upon hearing issued orders modifying the reductions by fixing his salary at $112 and her salary at $63 monthly, thereby making in each case a reduction of 10 per cent. from their previous salaries. The board refused to pay the relators more than the amounts so reduced, and they accepted payment of the reduced amounts under protest. The order of the state civil service commission made on appeal is as follows: "Upon consideration of the evidence adduced at the hearing of the appeals of Mr. Mrs. J.A. Clarke, Superintendent and Matron of the Huron County Home, claiming discrimination by the Board of County Commissioners in reducing the salaries of their positions twenty per cent. in the case of the Superintendent, and over forty per cent. in the case of the Matron, the State Civil Service Commission determined the reductions to be excessive, thereby constituting undue discrimination, and accordingly modified the reduction in salary of each position to a ten per cent. reduction, same being considered reasonable and fair in view of the services rendered and favorable conditions existing at the Institution."
On December 14, 1932, the relators filed their respective positions in mandamus in the Court of Appeals of Huron county against the board of county commissioners and the county auditor, alleging the foregoing facts, and prayed for a writ of mandamus compelling the respondents to allow them their respective salaries in the amounts fixed by the state civil service commission, and prayed also that the board certify the salaries thereof to the county auditor.
The joint answer of the defendants, admitting substantially the foregoing facts, pleaded conclusions of law, denied that the relators had any right of appeal, and alleged that the state civil service commission, under the Ohio laws, had no jurisdiction to make any modification of the order of the county commissioners.
The causes are lodged in this court as a matter of constitutional right.
Mr. Ernest L. Wolff and Mr. G. Ray Craig, for plaintiffs in error.
Mr. Allen G. Aigler, for defendants in error.
On May 27, 1915, the Legislature passed a comprehensive act (106 Ohio Law, 400) relating to civil service of the state, counties, cities, and school districts. Under the provisions of that act, now embodied in present Section 486-7 (6), General Code, the state civil service commission was empowered to "hear appeals from the decisions of appointing officers of persons in the classified service who have been reduced in pay or position, laid off, suspended, discharged or discriminated against by such appointing authority;" and under the provisions of the same act which are now embodied in present Section 486-17, General Code, it is provided that "no person shall be reduced in pay or position, laid off, suspended, discharged or otherwise discriminated against by an appointing officer for religious or political reasons or affiliations," etc.
These two are the only sections of the act dealing with "discriminations." Giving to the latter section its ordinary and grammatical meaning, and thus construing it, we are of the opinion that the Legislature intended to and did provide that whenever discrimination was charged in any of the cases therein mentioned such discrimination must be shown to have resulted from religious or political reasons or affiliations. Section 486-17, General Code, connotes such purpose and intention; and where a reduction in pay is alleged to have been caused by reason of discrimination, the record should show that religious or political reasons or affiliations were the cause for the reduction. The relators do not charge, neither did the commission find, nor does the record establish, the fact that the reduction in relator's salary was made on account of political or religious reasons. In order to obtain a writ of mandamus the relators must establish a clear legal right thereto. This they have not done.
Furthermore, were we to construe Section 486-17, General Code, otherwise, by holding that such discrimination was made for other than political or religious reasons, we are unable to perceive how any such discrimination could arise against the relators in the reduction of their pay, since we are not advised of any others occupying similar positions under the appointing authority whereby a yardstick might be furnished for the purpose of ascertaining how and in favor of whom such discrimination was made. Discarding the legal conclusions charged in the petitions and noted in the finding of the commission, the record does not disclose any legal discrimination. The record could as readily support the conclusion that the respondents may have caused these reductions in salaries to be made solely in the interest of public economy.
We do not allude to Section 486-17 a, General Code, since that section relates to removals only; nor for the reasons heretofore assigned do we feel called upon to re-examine the case of Curtis, Safety Director, v. State, ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522, and its second proposition of the syllabus which counsel for plaintiffs in error rely upon in support of their contention that appeals to the civil service commission lie only in cases of removal.
For the reasons stated the judgment of the Court of Appeals in each case will be reversed, and proceeding to render the judgment that court should have rendered, the writs prayed for will be denied.
Judgments reversed and judgments for plaintiffs in error, denying writs of mandamus.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.